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Gartz v. Commissioner of Labor

State of New York Supreme Court, Appellate Division Third Judicial Department


September 30, 2010

IN THE MATTER OF THE CLAIM OF LARRY R. GARTZ, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: August 2, 2010

Before: Mercure, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 15, 2009, which ruled that claimant was ineligible to receive unemployment insurance benefits because he was unable to file a valid original claim pursuant to Labor Law § 527.

Claimant was laid off from his employment in October 2006 and performed no services for the employer thereafter, but was entitled to a full year of pay under the terms of the layoff regardless of whether he obtained new employment. His November 2008 application for unemployment insurance benefits was denied on the ground that he had not filed a valid original claim (see Labor Law § 527 [1]). Although the employer styled the payments as salary, substantial evidence supports the Unemployment Insurance Appeal Board's determination that they "constituted a severance package, which cannot be considered as remuneration for the purpose of establishing a valid original claim for benefits" (Matter of Jeffares [Commissioner of Labor], 9 AD3d 770, 771 [2004]; see Labor Law § 517 [2] [h]; Matter of Woody [Roberts], 139 AD2d 879, 880 [1988]).

Mercure, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs.

20100930

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